Before the Court of Appeals took up that issue, it outlined
the origins and purposes of the legislation at issue in the appeal:

`[B]ullying among school-aged youth’
has `increasingly be[en] recognized as an important problem affecting
well-being and social functioning’. . . . (Tonja R. Nansel Bullying Behaviors Among U.S. Youth, 285 Journal of the Am Med Assn
2094 [2001] ). . . . [B]ullying represents an imbalance of power between the
aggressor and victim that often manifests in behaviors that are `verbal (e.g.,
name-calling, threats), physical (e.g., hitting), or psychological (e.g.,
rumors, shunning/exclusion)’ (id. at 2094. . . ). . . .

Educators and legislators . . . have
endeavored to craft policies designed to counter the adverse impact of bullying
on children. New York . . . enacted the `Dignity for All Students Act’ in 2010
(see L 2010, ch 482, § 2; Education Law §§ 10 et seq)., declaring that our State
must `afford all students in public schools an environment free of
discrimination and harassment’ caused by `bullying, taunting or intimidation’ (EducationLaw § 10). In furtherance of this objective, the State prohibited
discrimination and bullying on public school property or at school functions (see
Education Law § 12[1]). . . .

[T]he problem of bullying . . . has
been exacerbated by technological innovations and the widespread dissemination
of electronic information using social media sites. . . . The use of
computers and electronic devices to engage in this pernicious behavior is
commonly referred to as `cyberbullying’ (see e.g. Education Law § 11[8].
. . .

The Dignity for All Students Act did
not originally appear to encompass cyberbullying, particularly acts of bullying
that occur off school premises. As the ramifications of cyberbullying on social
networking sites spilled into the educational environment, in 2012, the State
Legislature amended the Act [by adding] a proscription on bullying that applied
to `any form of electronic communication’ (Education Law § 11[8]), including
any off-campus activities that `foreseeably create a risk of substantial
disruption within the school environment, where it is foreseeable the conduct .
. . might reach school property’ (Education Law § 11[7]).

Before the addition of the 2012
amendments to the Dignity for All Students Act, elected officials in Albany
County decided to tackle the problem of cyberbullying. They determined there
was a need to criminalize such conduct because the `State Legislature ha[d]
failed to address th[e] problem’ of `non-physical bullying behaviors transmitted
by electronic means’ (Albany County Local Law No. 11 of 2010, § 1). In 2010,
the Albany County Legislature adopted a new crime`-- the offense of
cyberbullying -- which was defined as

`any act of communicating or causing a
communication to be sent by mechanical or electronic means, including posting
statements on the internet or through a computer or email network,
disseminating embarrassing or sexually explicit photographs; disseminating
private, personal, false or sexual information, or sending hate mail, with no
legitimate private, personal, or public purpose, with the intent to harass,
annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise
inflict significant emotional harm on another person’. (id. § 2)

The provision outlawed cyberbullying
against `any minor or person’ situated in the county (id. § 3).Knowingly engaging in this activity was . . . a misdemeanor punishable by
up to one year in jail and a $1,000 fine (see id. § 4). The statute
. . . became effective in November 2010.

People v. Marquan M.,
supra.

A month after the Albany County cyberbullying law went into
effect, Marquan M., a

student attending Cohoes High School in
Albany County, used the social networking website `Facebook’ to create a page
bearing the pseudonym `Cohoes Flame.’ He anonymously posted photographs of
high-school classmates and other adolescents, with detailed descriptions of
their alleged sexual practices and predilections, sexual partners and other
types of personal information. The descriptive captions, which were vulgar
and offensive, prompted responsive electronic messages that threatened the
creator of the website with physical harm.

A police investigation revealed [Marquan
M.] was the author of the Cohoes Flame postings. He admitted his involvement
and was charged with cyberbullying under Albany County's local law. [Marquan
M.] moved to dismiss, arguing that the statute violated his right to free speech under the 1st Amendment. After the City Court denied [his] motion, he
pleaded guilty to one count of cyberbullying but reserved his right to raise
his constitutional arguments on appeal. County Court affirmed, concluding the
local law was constitutional to the extent it outlawed such activities directed
at minors, and held that the application of the provision to [his] Facebook
posts did not contravene his 1st Amendment rights. A Judge of this Court
granted defendant leave to appeal. . . .

People v. Marquan M.,
supra.(As Wikipedia explains, “in most cases,”
appeals to the New York Court of Appeals are “by permission.”)

cyberbullying law violates the Free
Speech Clause of the 1st Amendment because it is overbroad in that it includes
a wide array of protected expression, and is unlawfully vague since it does not
give fair notice to the public of the proscribed conduct. The County concedes
that certain aspects of the . . . law are invalid but maintains those portions
are severable, rendering the remainder of the act constitutional if construed
in accordance with the legislative purpose of the enactment. Interpreted in
this restrictive manner, the County asserts that the cyberbullying law covers
only particular types of electronic communications containing information of a
sexual nature pertaining to minors and only if the sender intends to inflict
emotional harm on a child or children.

People v. Marquan M.,
supra.

The Court of Appeals prefaced its analysis of his argument
by explaining that under

the Free Speech Clause of the 1st Amendment,
the government generally `has no power to restrict expression because of its
message, its ideas, its subject matter, or its content’ (U.S. v. Stevens, 559 U.S. 460 [2010]. . . . Consequently, it is well established that prohibitions
of pure speech must be limited to communications that qualify as fighting
words, true threats, incitement, obscenity, child pornography, fraud,
defamation or statements integral to criminal conduct (see U.S. v.
Alvarez, 132 S.Ct. 2537 [2012]; Brown v. Entertainment Merchants Assn.,131 S.Ct. 2729 [2011]. . . . Outside of such recognized categories, speech is
presumptively protected and generally cannot be curtailed by the government (see U.S.
v. Alvarez, supra. . . ).

Yet, the government unquestionably has
a compelling interest in protecting children from harmful publications or
materials (see Reno v. American Civil Liberties Union, 521U.S. 844 [1997]. . . . Cyberbullying is not conceptually immune from government
regulation, so we may assume, for the purposes of this case, that the 1st
Amendment permits the prohibition of cyberbullying directed at children,
depending on how that activity is defined (see generally Brown v.
Entertainment Merchants Assn., supra.
. . .Our task therefore
is to determine whether the specific statutory language of the Albany County
legislative enactment can comfortably coexist with the right to free speech.

People v. Marquan M.,
supra.

The Court of Appeals then outlined the specific legal issues
involved in this case:

Challenges to statutes under the Free
Speech Clause are usually premised on the overbreadth and vagueness doctrines.
A regulation of speech is overbroad if constitutionally-protected expression
may be `chilled’ by the provision because it facially “prohibits a real and
substantial amount of” expression guarded by the 1st Amendment (People v.
Barton, 8 N.Y.3d 70 [2006]). This type of facial challenge, which is
restricted to cases implicating the 1st Amendment, requires a court to assess
the wording of the statute -- without reference to the defendant's conduct’ (People
v. Stuart, 100 N.Y.2d 412 [2003]) -- to decide whether `a substantial
number of its applications are unconstitutional, judged in relation to the statute's
plainly legitimate sweep’ (U.S. v. Stevens, supra quotation marks
omitted]).

A law that is overbroad cannot be
validly applied against any individual (see People v. Stuart, 100
N.Y.2d at 421, 765 N.Y.S.2d 1. . . . [A] statute is seen . . . as vague if `it
fails to give a citizen adequate notice of the nature of proscribed conduct,
and permits arbitrary and discriminatory enforcement’ (People v. Shack, 86
N.Y.2d 529 [1995]). Hence, the government has the burden of demonstrating that
a regulation of speech is constitutionally permissible (see U.S. v.
Playboy Entertainment Group, 529 U.S. 803 [2000]).

People v. Marquan M.,
supra.Wikipedia has a good entry on the overbreadth
doctrine, if you would like to know more about it.It also has a good entry on the vagueness
issue.

The court then took up the Albany County cyberbullying
statute, finding that

[b]ased on the text of the statute . .
., it is evident Albany County `created a criminal prohibition of alarming
breadth’ (U.S. v. Stevens, supra). The language of the local law
embraces a wide array of applications that prohibit types of protected speech far
beyond the cyberbullying of children. . . . As written, the Albany County law
in its broadest sense criminalizes `any act of communicating . . . by mechanical
or electronic means . . . with no legitimate . . . personal . . . purpose, with
the intent to harass [or] annoy . . . another person.’

On its face, the law covers
communications aimed at adults, and fictitious or corporate entities, even
though the county legislature justified passage of the provision based on the
detrimental effects that cyberbullying has on school-aged children. The law
also lists particular examples of covered communications, such as `posting
statements on the internet or through a computer or email network,
disseminating embarrassing or sexually explicit photographs; disseminating
private, personal, false or sexual information, or sending hate mail.’ But such
methods . . . are not limited to . . . cyberbullying -- the law includes every
conceivable form of electronic communication, such as telephone conversations,
a ham radio transmission or even a telegram.

In addition, the provision pertains to
electronic communications that are meant to `harass, annoy . . . taunt . . .
[or] humiliate’ any person or entity, not just those intended to `threaten,
abuse . . . intimidate, torment . . . or otherwise inflict significant
emotional harm on’ a child. In considering the facial implications, it appears
that the provision would criminalize a broad spectrum of speech outside the
popular understanding of cyberbullying, including, for example: an email
disclosing private information about a corporation or a telephone conversation
meant to annoy an adult.

People v. Marquan M.,
supra.

The Court of Appeals then noted that Albany County “admitted”
the text of

statute is too broad and that certain
aspects of its contents encroach on recognized areas of protected free speech.
Because the law `imposes a restriction on the content of protected speech, it
is invalid unless’ the County `can demonstrate that it passes strict scrutiny
-- that is, unless it is justified by a compelling government interest and is
narrowly drawn to serve that interest’ (Brown v. Entertainment Merchants
Assn., supra.). For this reason, the County asks us to sever the
offending portions and declare that the remainder of the law survives strict
scrutiny.

What remains, in the County's view, is
a tightly circumscribed cyberbullying law that includes only three types of
electronic communications sent with the intent to inflict emotional harm on a
child: (1) sexually explicit photographs; (2) private or personal sexual
information; and (3) false sexual information with no legitimate public,
personal or private purpose.

People v. Marquan M.,
supra.

The court then noted that the County was correct when it
pointed out that courts “should strive to save a statute when confronted with a
Free Speech challenge,” but found it was

not a permissible use of judicial
authority for us to employ the severance doctrine to the extent suggested by
the County. . . . It is possible to sever the portion of the cyberbullying law
that applies to adults and other entities because this would require a simple
deletion of the phrase `or person’ from the definition of the offense. But
doing so would not cure all of the law's constitutional ills. . . . [T]he 1st
Amendment protects annoying and embarrassing speech . . ., even if a child may
be exposed to it . . ., so those
references would also need to be excised from the definitional section. And,
the 1st Amendment forbids the government from deciding whether protected speech
qualifies as `legitimate,’ as Albany County has attempted to do (see Snyder
v. Phelps, 131 S.Ct. 1207 [2011], quoting Erznoznik v.Jacksonville, 422 U.S. 205 [1975]. . . .

It is undisputed that the Albany County
statute was motivated by the laudable public purpose of shielding children from
cyberbullying. The text of the cyberbullying law, however, does not adequately
reflect an intent to restrict its reach to the three discrete types of
electronic bullying of a sexual nature designed to cause emotional harm to
children. Hence, to accept the County's proposed interpretation, we would need
to significantly modify the applications of the law, resulting in the amended
scope bearing little resemblance to the actual language of the law.

Such a judicial rewrite encroaches on
the authority of the legislative body that crafted the provision and enters the
realm of vagueness because any person who reads it would lack fair notice of what
is legal and what constitutes a crime. Even if the1st Amendment allows a
cyberbullying statute of the limited nature proposed by Albany County, the local
law here was not drafted in that manner. Albany County therefore has not met
its burden of proving that the restrictions on speech contained in its
cyberbullying law survive strict scrutiny.

People v. Marquan M.,
supra.

Finally, the court explained that there is

undoubtedly general consensus that [Marquan
M.’s] Facebook communications were repulsive and harmful to the subjects of his
rants, and potentially created a risk of physical or emotional injury based on
the private nature of the comments. He identified specific adolescents with
photographs, described their purported sexual practices and posted the
information on a website accessible world-wide.

Unlike traditional bullying, which
usually takes place by a face-to-face encounter, [Marquan M.] used the
advantages of the internet to attack his victims from a safe distance,
twenty-four hours a day, while cloaked in anonymity. Although the 1st Amendment
may not give [him] the right to engage in these activities, the text of Albany
County's law envelops far more than acts of cyberbullying against children by
criminalizing a variety of constitutionally-protected modes of
expression.

People v. Marquan M.,
supra.

The Court of Appeals therefore held that “Albany County's
Local Law No. 11 of 2010 -- as drafted -- is overbroad and facially invalid
under the Free Speech Clause of the 1st Amendment.”People
v. Marquan M., supra.

If you would like to read more about the case, check out the
news stories you can find here and here. As the second article notes, some of the Court
of Appeals judges filed a dissenting opinion. This article provides more information
about the opinion and what the local legislators may do, as well as about the
underlying conduct.